Holmes v. Slay et al

Filing 72

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendants Slay, Battle-Turner, Gray, Lee and Irwin's Motion to Dismiss Counts V, VI and VII of Plaintiff's Amended Complaint is GRANTED, and Counts V, VI and VII will be DISMISSED as to these defendants. [Doc. 52] IT IS FURTHER ORDERED that defendant Sharp's Motion to Dismiss is DENIED. [Doc. 58] IT IS FURTHER ORDERED that defendant Garrett's Motion to Dismiss is DENIED. [Doc. 56] IT IS FURTHER ORDERED that defendants Sharp and Garrett shall file their Answers to the Amended Complaint within the time permitted by the Federal Rules of Civil Procedure. See Rule 12(a)(4)(A), Fed. R. Civ. P. An appropriate order of partial dismissal will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 11/7/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MICHAEL HOLMES,
Plaintiff,
v.
FRANCIS G. SLAY, et al.,
Defendants.

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No. 4:12-CV-2333 HEA

MEMORANDUM AND ORDER
This matter is before the Court on separate motions to dismiss plaintiff’s Amended
Complaint filed by defendants Shell Sharp, Bobby Lee Garrett, and the members of the Board of
Police Commissioners of the St. Louis Metropolitan Police Department: defendants Mayor Francis
G. Slay, Bettye Battle-Turner, Richard Gray, Jerome D. Lee and Thomas Irwin (collectively referred
to as the “Board”). The motions are fully briefed and ripe for review. For the following reasons,
the Board’s motion to dismiss Counts V, VI and VII will be granted, and defendants Sharp and
Garrett’s motions to dismiss will be denied in all respects.
Background
This action was filed on December 17, 2012 by plaintiff Michael Holmes against the Board
and two of its former police officers, defendants Sharp and Garrett. Plaintiff alleges that his federal
civil rights were violated when he was arrested on December 9, 2003 at a boarding house he was
visiting at 5984 Cates in the City of St. Louis, convicted on June 28, 2006 on charges of possessing
with the intent to distribute more than 50 grams of a substance containing cocaine base and
possession of firearms in furtherance of a drug trafficking crime, and imprisoned for a period of over
five years based on false evidence manufactured by defendants Sharp and Garrett acting together.

Among other things, plaintiff alleges that Sharp systematically framed him by manufacturing
evidence and providing false information to federal prosecutors regarding the alleged events on the
day of plaintiff’s arrest, and that Garrett performed surveillance at the scene of the arrest,
interviewed plaintiff after his arrest, and manufactured evidence by falsely claiming to prosecutors
that plaintiff had admitted during a 1995 arrest that he was a drug dealer. Plaintiff alleges that this
conduct was part of a widespread conspiracy involving other St. Louis Police Department narcotics
officers, of which Garrett was a ringleader.
Plaintiff also alleges that Garrett had previously attempted to “extort and frame” him during
the 1995 arrest, after which plaintiff filed an Internal Affairs complaint with the St. Louis Police
Department alleging that Garrett and others threatened him, physically and verbally abused him, and
planted drugs in his house.1 The Amended Complaint recounts that defendant Garrett and another
former police officer, Vincent Carr, were later indicted and convicted on federal charges of
corruption related to their official duties, including theft, conspiracy, making false statements,

1

Plaintiff alleges in the Amended Complaint that he entered an Alford plea, see North
Carolina v. Alford, 400 U.S. 25 (1970), in the 1995 case because he was innocent of the charges
made by Garrett, received a two-year suspended imposition of sentence, and successfully completed
probation on February 13, 1998. Plaintiff states that despite this, the government “repeatedly and
wrongfully” referred to the 1995 case as a “guilty plea” and “conviction” for drug possession with
the intent to distribute. Am. Compl. ¶¶ 29-30.
The Court notes that suspended executions of sentence are considered by Missouri courts
to be final judgments, while suspended impositions of sentence are not. See Yale v. City of
Independence, 846 S.W.2d 193, 194-95 (Mo. 1993). The Eighth Circuit has held, however, that both
suspended impositions of sentence and suspended executions of sentence law qualify as prior final
convictions under federal law for purposes of sentence enhancement under 21 U.S.C. §
841(b)(1)(A). See United States v. Craddock, 593 F.3d 699, 701 n.4 (8th Cir. 2010). In the
underlying criminal case against plaintiff, the government filed a Criminal Information pursuant to
21 U.S.C. § 851 based on the 1995 arrest, resulting in an enhancement of plaintiff’s sentence under
§ 841(b)(1)(A). See United States v. Holmes, No. 4:05-CR-522 CEJ (E.D. Mo.) (Docs. 28, 42).
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planting evidence, arresting an innocent man to cover up their theft of money, and involvement in
falsifying court documents, lab forms and police reports.2
Following the convictions of defendant Garrett and Carr, plaintiff filed an amended motion
to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. On September 26, 2011, this
Court, the Honorable Judge Carol E. Jackson presiding, ordered that plaintiff receive a new trial
based on newly discovered evidence. See Holmes v. United States, 4:08-CV-1142 CEJ (E.D. Mo.)
(Docs. 39, 40). On October 12, 2011, Judge Jackson issued an order vacating plaintiff’s criminal
conviction. See United States v. Holmes, No. 4:05-CR-522 CEJ (E.D. Mo) (Doc. 101). The
government subsequently moved to dismiss the criminal indictment and abandoned all charges
against plaintiff. Plaintiff filed a Motion for Certificate of Innocence pursuant to 28 U.S.C. § 2513,
which remains pending in Case No. 4:08-CV-1142 CEJ.
Plaintiff asserts federal civil rights claims against Sharp, Garrett and the Board pursuant to
42 U.S.C. § 1983, and supplemental state law claims for malicious prosecution, false imprisonment
and abuse of process.
Legal Standard
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency
of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted, “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff need not
provide specific facts in support of his allegations, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per

2

See United States v. Garrett, No. 4:08-CR-703 ERW (E.D. Mo.); United States v. Carr, No.
4:08-CR-703 ERW (E.D. Mo.).
3

curiam), but “must include sufficient factual information to provide the ‘grounds’ on which the
claim rests, and to raise a right to relief above a speculative level.” Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation
requires a plaintiff to plead “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A complaint “must contain
either direct or inferential allegations respecting all the material elements necessary to sustain
recovery under some viable legal theory.” Id. at 562 (quoted case omitted). This standard “simply
calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [the
claim or element].” Id. at 556.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in
the complaint, even if it appears that “actual proof of those facts is improbable,” id. at 556, and
reviews the complaint to determine whether its allegations show that the pleader is entitled to relief.
Twombly, 550 U.S. at 555-56; Fed. R. Civ. P. 8(a)(2). The principle that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions, however. Iqbal,
556 U.S. at 678 (stating “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice”). Although legal conclusions can provide the
framework for a complaint, they must be supported by factual allegations. Id. Plausibility is
assessed by considering only the materials that are “necessarily embraced by the pleadings and
exhibits attached to the complaint[.]” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012)
(quoted case omitted).

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Discussion
I. Defendant Board’s Motion to Dismiss
The Board moves to dismiss plaintiff’s state law claims of malicious prosecution, wrongful
imprisonment and abuse of process against it in Counts V, VI and VII of the Amended Complaint.
The Board states that plaintiff’s claims against it are based solely on allegations that defendants
Sharp and Garrett were at all relevant times acting as the “employees, servants and agents” of the
St. Louis Metropolitan Police Department and the Board. The Board asserts that it is entitled to
dismissal based on sovereign immunity for the state law claims in Counts V, VI and VII, and also
asserts that the applicable statute of limitations for Count VII has lapsed.
The Board states that under Missouri law, a claim against it based in tort is barred by the
doctrine of sovereign immunity unless the claim is based on either (1) negligent driving by public
employees, or (2) the dangerous condition of public property; pursuant to § 537.600.1, Missouri
Revised Statutes (2000), and Gregg v. City of Kansas City, 272 S.W.3d 353 (Mo. Ct. App. 2008).
The Board asserts that plaintiff’s claims do not fit within either exception, and therefore his
malicious prosecution, wrongful imprisonment and abuse of process claims against it are barred by
sovereign immunity and the Court should dismiss them.
In response, plaintiff states that he was granted an extension of time and leave to perform
discovery to determine whether the Board has waived the sovereign immunity defense raised in its
motion by obtaining insurance coverage pursuant to § 537.610, Mo. Rev. Stat. Plaintiff states that
through discovery, the Board has represented that there are no potentially applicable insurance
policies or insurance coverage, either at present or from the time period of the underlying conduct
in 1977. Plaintiff concludes that he “does not believe that the Board has waived its sovereign
immunity defense as to Counts V, VI and VII.” Pl.’s Response at 2.
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In Missouri, the doctrine of sovereign immunity generally protects public entities from
liability for negligent acts. Mo. Rev. Stat. § 537.600; State ex rel. Cass Medical Center v. Mason,
796 S.W.2d 621, 622 (Mo. 1990) (en banc). Numerous Missouri court decisions have held that
intentional torts are included in the protection of sovereign immunity. See, e.g., Credit Acceptance
Corp. v. Smith, 991 S.W.2d 720, 721 (Mo. Ct. App. 1999) (city entitled to sovereign immunity on
conversion claim); Mitchell v. Village of Edmundson, 891 S.W.2d 848, 850 (Mo. Ct. App. 1995)
(conversion claim; court stated, “Intentional torts have consistently been found to fall within the
shield of sovereign immunity”). As the Board states, section 537.600.1 waives this immunity for
injuries resulting from negligent acts or omissions by public employees operating motor vehicles,
and for injuries resulting from the dangerous condition of a public entity’s property. Pursuant to
§ 537.610, “when a public entity purchases liability insurance for tort claims, sovereign immunity
is waived to the extent of and for the specific purposes of the insurance purchased.” Fantasma v.
Kansas City, Mo., Bd. of Police Comm’rs, 913 S.W.2d 388, 391 (Mo. Ct. App. 1996) (citing State
ex rel. Board of Trustees of City of N. Kansas City Mem’l Hosp. v. Russell, 843 S.W.2d 353, 360
(Mo. 1992) (en banc)).
As a result, absent the purchase of potentially applicable insurance, the Board is entitled to
sovereign immunity. Because plaintiff concedes that the Board has not purchased such insurance,
the Board’s motion to dismiss the state law claims in Counts V, VI and VII should be granted based
on sovereign immunity. As a result, it is not necessary for the Court to reach the Board’s argument
concerning the statute of limitations.
II. Defendants Sharp and Garrett’s Motions to Dismiss
Defendants Sharp and Garrett (collectively “defendants”) filed separate motions to dismiss.
Defendants’ motions assert similar arguments for dismissal of Counts I and VII of plaintiff’s
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Amended Complaint, and the Court will address the motions together as to those counts.3
Defendants move to dismiss plaintiff’s claims under 42 U.S.C. § 1983 in Count I, to the extent they
are based on Sharp and Garrett’s trial testimony, based on absolute immunity. Defendants also
move to dismiss plaintiff’s state law abuse of process claims in Count VII for failure to plead
sufficient facts to state a claim, and as barred by applicable statute of limitations
A. Testimonial Immunity - Count I
Count I asserts a claim for violation of plaintiff’s civil rights pursuant to 42 U.S.C. § 1983.
In their motions, defendants state there is absolute immunity from § 1983 claims for any person who
provides sworn testimony at trial, Briscoe v. LaHue, 460 U.S. 325, 335 (1983), and that this
immunity applies to all witnesses, including police officers testifying in criminal matters.
Defendants state that the factual allegations of the Amended Complaint incorporated into Count I
include several references to their testimony at plaintiff’s criminal trial, specifically paragraphs 15,
26, 38 and 41 for defendant Sharp, and paragraphs 28 and 51(c) for defendant Garrett. Defendants
assert they are entitled to absolute immunity for testimony at trial. Sharp contends that as a result,
he is entitled to dismissal of plaintiff’s § 1983 claims in Count I to the extent they are based on his
trial testimony. Defendant Garrett asserts that Count I alleges only that he testified falsely at
plaintiff’s criminal trial, and therefore he is entitled to dismissal of Count I against him in its
entirety.
Plaintiff responds that defendants’ arguments are premised on the assertion that his claims
in Count I are based solely on their testimony before the jury, which is incorrect. Plaintiff states that
the essence of his claim in Count I is not that the defendant officers lied on the stand, but that they

3

The Court will separately address defendant Garrett’s motion to dismiss Counts V and VI.
7

jointly manufactured the case against him from the very beginning, intentionally instigated false
charges against him, suppressed exculpatory evidence, and intentionally framed him for a crime he
did not commit. Plaintiff states that absolute testimonial immunity has no application to the pretrial
phase of a criminal case, including investigative conduct by an officer, or the officer’s conduct as
a complaining witness, citing Malley v. Briggs, 475 U.S. 335, 340-41 (1986).
Plaintiff states that Count I alleges Sharp and Garrett acting together did the following: (1)
manufactured evidence against him, including planting evidence at the scene; (2) Sharp gave false
statements in the police report and to federal prosecutors, including that plaintiff dropped a bag of
crack cocaine and admitted to residing at 5984 Cates; (3) Garrett claimed to prosecutors that plaintiff
had previously admitted to being a drug dealer; (4) provided false information in the police report
and in other documents and reports prepared as part of defendants’ official duties; (5) provided false
information to federal prosecutors in order to wrongfully and illegally deprive plaintiff of his
freedom; (6) framed plaintiff for a crime he did not commit and obtained his conviction; and (7)
allowed plaintiff to languish in prison for over five years despite their knowledge that plaintiff did
not commit the crime alleged. See Amended Complaint ¶¶ 51(a)-(g). Plaintiff states that he also
alleges Sharp and Garrett actively worked together and with other elements of the Police
Department, as they have in other cases, to obtain his wrongful conviction, and that these allegations
establish a plausible claim for relief, particularly in light of Garrett’s conviction for corruption and
Sharp’s departure from the force while under investigation for involvement in corrupt activities.
Plaintiff also states that Garrett’s false assertion plaintiff was an “admitted drug dealer” is
relevant not only to Garrett’s perjury at trial, but this assertion and Garrett’s prior targeting of
plaintiff was essential in instigating the investigation and purported search that resulted in plaintiff’s
arrest, in increasing the sentence he received, and in convincing federal prosecutors to pursue
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charges. Plaintiff states that the complaint also alleges Garrett engaged in other actions as part of
the conspiracy, that were unrelated to his trial testimony. See ¶¶ 44-48.
Plaintiff argues that by taking these actions, Sharp and Garrett deprived him of his
constitutional due process rights to a fair trial, and to not be framed for a crime he did not commit,
citing Winslow v. Smith, 696 F.3d 716, 732 (8th Cir. 2012) (“all courts that have directly confronted
the question before us agree that the deliberate manufacture of false evidence contravenes the Due
Process Clause.”) (quoted case omitted). Plaintiff contends that Sharp and Garrett are not entitled
to testimonial privilege for the conduct alleged in the Amended Complaint.
The Court will address the defendants’ replies separately.
1. Defendant Sharp
Sharp replies that plaintiff’s response glosses over the allegations of the Amended Complaint
and goes beyond the scope of the motion to dismiss, which is “clearly limited to the portions of
Count I of Plaintiff’s Complaint regarding Defendant Sharp’s trial testimony[.]” Sharp Reply at 2.4
Sharp contends plaintiff has raised no viable arguments in opposition to dismissal of his claims
based on trial testimony, as set forth in paragraphs 15, 26, 38 and 41 of the Amended Complaint.
A review of the Amended Complaint shows that Paragraph 15 describes Judge Jackson’s
order granting plaintiff’s § 2255 motion to vacate his conviction, and states in pertinent part that
Judge Jackson found that Sharp (and Garrett’s) testimony had been discredited by newly discovered

4

It is understandable that plaintiff responded to Sharp’s motion to dismiss as it if were
directed to the entirety of Count I. Although the motion to dismiss asserts that Sharp is entitled to
absolute immunity for his trial testimony against Holmes “and therefore, the portions of Count I of
Plaintiff’s Complaint based on his trial testimony fail to state a claim pursuant to 42 U.S.C. § 1983”
(Doc. 58, ¶ 1), in contrast, Sharp’s memorandum in support states in part, “Defendant is entitled to
absolute immunity for his testimony at Plaintiff’s criminal trial and Count I should be dismissed.”
Mem. Supp. Mot. Dismiss at 4 (Doc. 59).
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evidence, and that plaintiff had “consistently maintained that he is innocent and that Sharp and
Garrett lied in their testimony.” Paragraph 26, when read in context following paragraph 25, states
that newspaper reports concerning the internal police investigation against Sharp included
allegations that he had a history of perjured testimony. Paragraph 38 does not mention testimony
by Sharp and instead appears to describe the contents of the police report concerning plaintiff’s
arrest. Paragraph 41 does concern Sharp’s trial testimony against plaintiff.
Under Supreme Court precedent, witnesses are entitled to absolute immunity for damages
liability for perjured testimony, and this immunity extends to knowingly false testimony by police
officers. Briscoe, 460 U.S. at 335. Although paragraph 41 of the Amended Complaint’s factual
allegations directly refers to Sharp’s trial testimony and those allegations are incorporated into
Count I’s § 1983 claim, Count I itself does not allege that Sharp violated plaintiff’s constitutional
rights by offering perjured trial testimony against him. Instead, plaintiff alleges in Count I that
Sharp acted together with Garrett and violated plaintiff’s constitutional rights by (1) manufacturing
evidence against him, including by planting evidence at the scene, (2) making false statements in
the police report and to federal prosecutors, including that plaintiff dropped a bag of crack cocaine
and admitted to residing at 5984 Cates, (3) providing false information in the police report and other
documents, (4) providing false information to federal prosecutors in order to wrongfully and
unconstitutionally deprive plaintiff of his freedom, (5) framing plaintiff for a crime he did not
commit and obtaining his conviction, and (6) allowing plaintiff to languish in prison despite his
knowledge that plaintiff did not commit the crime alleged. Amended Complaint ¶¶ 51(a)-(g).
The Court considers the limited allegations in the Amended Complaint concerning Sharp’s
trial testimony to be largely background information that helps to explain what happened to plaintiff
and led to this lawsuit. While plaintiff cannot base a § 1983 claim on Sharp’s trial testimony, see
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Briscoe, 460 U.S. at 335, he does not appear to do so, and instead asserts that other conduct by Sharp
violated his constitutional rights. Accordingly, this aspect of Sharp’s motion to dismiss should be
denied. Prior to trial, Sharp may ask the Court to revisit this issue through a motion in limine or
proposed jury instruction, if necessary.
2. Defendant Garrett
Defendant Garrett replies that the Amended Complaint does not contain any allegations
related to any specific conduct by him prior to plaintiff’s arrest. Garrett states that the crux of
plaintiff’s claims against him is his alleged trial testimony that plaintiff was an “admitted drug
dealer.” Garrett argues that a complaint may be dismissed if it contains only “naked assertions”
without “further factual enhancement,” Iqbal, 556 U.S. at 678, and the sole allegation against him
in Count I with any factual enhancement is that he testified falsely at plaintiff’s trial.
Garrett further replies that while plaintiff contends he conspired with Sharp, Count I does
not assert a conspiracy claim and he can only be liable under § 1983 for actions he personally took,
citing Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). Garrett states that contrary to
plaintiff’s opposition memorandum, there are no allegations in the Amended Complaint that he
manufactured false evidence. Finally, Garrett states plaintiff’s argument that his due process rights
were violated because Garrett concealed from prosecutors that plaintiff was not an “admitted drug
dealer” is directly contradicted by the Amended Complaint, which alleges that federal prosecutors
were provided information regarding plaintiff’s Alford plea prior to trial from a certified copy of the
sentence and judgment.
As stated above, witnesses are entitled to absolute immunity for damages liability for
perjured testimony, and this immunity extends to knowingly false testimony by police officers.
Briscoe, 460 U.S. at 335. Garrett’s assertion that plaintiff’s claims against him in Count I are based
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solely on his allegedly false trial testimony that plaintiff was an “admitted drug dealer” is incorrect,
however. The factual background of the Amended Complaint alleges that in addition to testifying
falsely at plaintiff’s trial, Garrett (1) was present and performed surveillance at the scene of
plaintiff’s arrest, interviewed plaintiff after his arrest, and claimed to prosecutors that plaintiff
admitted in 1995 that he was a drug dealer, Am. Compl. ¶¶ 19, 27; (2) informed prosecutors falsely
that plaintiff had “inexplicably admitted during questioning that he was a ‘drug dealer’ during the
1995 arrest,” and that prosecutors relied on this evidence in making the determination that they
believed plaintiff was a drug dealer and in possession of narcotics on December 9, 2003, id. ¶ 28;
(3) previously attempted to extort money from plaintiff and frame him for a drug crime in 1995, id.
¶ 29; (4) after plaintiff’s arrest, indicated that he knew plaintiff had lived in Ferguson, Missouri for
approximately two years and did not live at the 5984 Cates residence where he was arrested; id.
¶ 44; (5) interviewed plaintiff at the police station after his arrest and encouraged plaintiff to sign
a consent form to search the premises in an attempt to validate the search and falsely establish that
plaintiff lived at or had control of the premises at 5984 Cates and thus had authority to consent to
the search, id. ¶ 45; (6) had plaintiff sign a “money disclaimer” during this interview attesting that
plaintiff had no knowledge of any money in the house, to ensure that Garrett and other officers could
steal and keep any money found in the house; id. ¶ 46; and (7) conferred with Sharp for at least an
hour prior to plaintiff’s trial; on information and belief to go over the details of Sharp and Garrett’s
conspiracy, id. ¶ 47.
Paragraph 28 of the Amended Complaint does include factual allegations directly referring
to Garrett’s trial testimony and those allegations are incorporated into Count I’s § 1983 claim.
However, Count I does not allege that Garrett violated plaintiff’s constitutional rights by offering
perjured trial testimony against him. Instead, plaintiff alleges in Count I that Garrett acted together
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with Sharp and violated plaintiff’s constitutional rights by (1) manufacturing evidence against him,
including by planting evidence at the scene, (2) claiming to prosecutors that plaintiff had previously
admitted to being a “drug dealer,” (3) providing false information in the police report and other
documents, (4) providing false information to federal prosecutors in order to wrongfully and
unconstitutionally deprive plaintiff of his freedom, (5) framing plaintiff for a crime he did not
commit and obtaining his conviction, and (6) allowing plaintiff to languish in prison despite his
knowledge that plaintiff did not commit the crime alleged. Am. Compl. ¶¶ 51(a)-(g).
The Court considers the allegations in the Amended Complaint concerning Garrett’s trial
testimony to be largely background information that helps to explain what happened to plaintiff and
led to this lawsuit. While plaintiff cannot base a § 1983 claim on Garrett’s trial testimony, see
Briscoe, 460 U.S. at 335, he does not appear to do so, and instead asserts that other conduct by
Garrett violated his constitutional rights. Accordingly, this aspect of Garrett’s motion to dismiss
should be denied. Prior to trial, Garrett may ask the Court to revisit this issue through a motion in
limine or proposed jury instruction, if necessary.
B. Abuse of Process - Count VII
Defendants Sharp and Garrett move to dismiss Count VII on the grounds that plaintiff has
failed to allege sufficient facts to support a claim for abuse of process. Defendants state that to
prove a claim for abuse of process, a plaintiff must show: (1) the defendant made an improper,
illegal, perverted use of process, which use was neither warranted nor authorized by the process; (2)
the defendant had an illegal purpose in doing so; and (3) damage resulted, citing Crow v. Crawford
& Co., 259 S.W.3d 104, 116 (Mo. Ct. App. 2008). Defendants state that the Amended Complaint
does not distinguish between the conduct of Sharp and Garrett, makes the conclusory statement that
they “abused legal process . . . for an unlawful purpose,” Am. Compl. ¶ 97, and provides “absolutely
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no information or factual support as to what Defendant [Sharp and Garrett’s] ‘unlawful’ or ‘ulterior’
purpose was.” Sharp’s Mem. Supp. Mot. Dismiss at 5; Garrett’s Mem. Supp. Mot. Dismiss at 9.
Defendants contend that plaintiff has only provided a formulaic recitation of a cause of action for
abuse of process, and as a result dismissal is required.
Plaintiff responds that the test concerning abuse of process is whether the process was used
to accomplish some end which is outside the regular purview of the process, citing Ritterbusch v.
Holt, 789 S.W.2d 491, 492 n.1 (Mo. 1990) (en banc). Plaintiff states that he has alleged the
defendants made illegal and improper uses of legal process, including preparing a fraudulent
affidavit in support of their application for a search warrant, planting and manufacturing evidence
against him, providing false or misleading information in the police report and to federal
prosecutors, and testifying falsely at trial. Am. Compl. ¶ 96. Plaintiff states that he has alleged
defendants had an improper purpose in their misuse of legal process when they “used legal process
through their authority as police officers to frame Plaintiff for a crime he did not commit, rather than
for legitimately investigating and prosecuting criminal acts.” Id. ¶ 98. Plaintiff asserts that this is
clearly an “end” that is outside the regular purview of the legal process afforded to police officers
in investigating a crime.
Sharp and Garrett reply that plaintiff’s opposition fails to identify any allegations in his
complaint that provide any factual enhancement to his “naked” recitation of the elements of a claim
for abuse of process. Sharp and Garrett, however, do not provided analysis of the relevant facts or
discuss any illustrative authority to support their assertion.
The Amended Complaint alleges that former police officers Sharp and Garrett engaged in
concerted activities that comprised a conspiracy to plan, organize and carry out corrupt activities,
and each took specific action that included framing individuals for crimes using manufactured
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evidence; suppressing and destroying exculpatory evidence; stealing cash, contraband and other
property; and accusing individuals of crimes they did not commit in an effort to extort money from
those individuals or to deflect from their corruption. Am. Compl. ¶ 21. Plaintiff alleges that the
wrongful and illegal investigation and prosecution targeting him was a direct result of this ongoing
corruption by Sharp and Garrett. Id. ¶ 23.
An action for abuse of process can lie when there is “any unjustified criminal prosecution
. . . in which legal process is used for an end other than that of the proceeding itself.” W. Page
Keeton, et al., Prosser and Keeton on Torts 898 (5th ed. 1984). The Court finds that plaintiff has
pleaded more than mere label and conclusions, and instead has pleaded sufficient facts relating to
actions taken by Sharp and Garrett that may constitute abuse of process. The language of the
Amended Complaint that defendants assert is merely conclusory, that they “used legal process
through their authority as police officers to frame Plaintiff for a crime he did not commit, rather than
for legitimately investigating and prosecuting criminal acts.” Am. Compl. ¶ 97, is not merely
conclusory. The complaint alleges specific facts concerning the acts that are asserted to constitute
abuse of process, and alleges that these acts were done as part of Sharp and Garrett’s corrupt
conspiracy to frame innocent people, steal cash, contraband and other property, and falsely accuse
people of crimes in order to extort from them.
This aspect of defendants Sharp and Garrett’s motions to dismiss should therefore denied.
C. Statute of Limitations - Count VII
Sharp and Garrett also move to dismiss Count VII, plaintiff’s state law claim for abuse of
process, on the basis that the applicable statute of limitations has expired. Defendants state that
under Missouri law, an action for abuse of process comes within the five-year general statute of
limitations applicable to personal injuries, § 516.120(2), see Corley v. Jacobs, 820 S.W.2d 668, 672
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(Mo. Ct. App. 1991), and that the statute begins to run from the termination of the acts that
constitute the alleged abuse, not from the completion of the action in which the process issued, citing
Steinhilber v. Lake Winnebago Home Owner’s Ass’n, 965 F.2d 602, 604 (8th Cir. 1992).
Defendants state that the last event plaintiff complains of as constituting abuse of process is their
false testimony at his criminal trial in June 2006. Defendants assert that plaintiff’s cause of action
for abuse of process would therefore have arisen in June 2006 and expired in June 2011, seventeen
months prior to the commencement of this action, so Count VII should be dismissed as barred by
the statute of limitations.
Plaintiff responds that his abuse of process claim did not accrue until the time his conviction
was vacated, because the claim would have impugned the conviction. Plaintiff contends that Corley
and Steinhilber do not address the application of the abuse of process statute of limitations in the
context of a claim by an exonerated prisoner where the abuse of process resulted in a wrongful
conviction, and therefore provide little guidance. Plaintiff states that in the context of civil rights
claims arising from wrongful convictions, the Supreme Court has held that a claim for damages for
an unconstitutional conviction or imprisonment, or for other actions whose unlawfulness would
render a conviction or sentence invalid, does not accrue until the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance of a writ
of habeas corpus, citing Heck v. Humphrey, 512 U.S. 477 (1994), and Wallace v. Kato, 549 U.S.
384, 393 (2007). Plaintiff states that any claim for abuse of process would have necessarily implied
the invalidity of his conviction, and therefore would have been barred by Heck.
In the alternative, plaintiff argues that his abuse of process claim would have been barred by
the Missouri doctrines of res judicata and collateral estoppel until such time as the conviction was
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overturned, citing Adams v. VanWormer, 892 S.W.2d 655 (Mo. Ct. App. 1994) (in civil lawsuit
against police officer and witness involved in criminal trial, convicted murderer was collaterally
estopped from raising issues in civil action that had been decided against him in the earlier criminal
trial). Plaintiff states that under these doctrines, he would have been barred from asserting his abuse
of process claim while his conviction was in effect, as he could not bring a claim alleging that Sharp
and Garrett abused legal process and thereby caused his conviction without necessarily and
impermissibly challenging the validity of that conviction. Plaintiff argues that if defendants are
correct and he cannot bring an abuse of process claim now, after the conviction has been set aside,
then there was no five-year period during which the claim could ever have been brought, and he
loses his cause of action without the benefit of any limitations period. Plaintiff states that because
he could not bring this claim until the bar of his conviction was removed, his claim was filed within
five years of the conviction being set aside, and therefore is timely.
Plaintiff also argues that abuse of process can constitute a “continuing tort” or “continuing
wrong” under Missouri law, citing Davis v. Laclede Gas Co., 603 S.W.2d 554, 556 (Mo. 1980) (en
banc) (“If . . . the wrong may be said to continue from day to day, and to create a fresh injury from
day to day, and the wrong is capable of being terminated, a right of action exists for the damages
suffered within the statutory period immediately preceding suit.”); and Guirl v. Guirl, 708 S.W.2d
239, 247 (Mo. Ct. App. 1986) (filing and maintaining a petition constituted abuses of process).
Plaintiff states that he alleges Sharp and Garrett “allow[ed] Plaintiff to languish in prison for over
5 years and 3 months, despite Defendants’ knowledge that Plaintiff did not commit the crime
alleged.” Am. Compl. ¶ 51(g). Plaintiff contends that Sharp and Garrett could have come forward
and told the truth at any time during his incarceration but did not, and as a result the term of his

17

incarceration constitutes a continuing wrong and the limitations period for his abuse of process claim
was tolled during his incarceration.
In reply, Sharp and Garrett argue that Heck concerned a prisoner seeking damages in a §
1983 suit, and plaintiff fails to explain how a Supreme Court decision regarding the accrual of a §
1983 action would have any bearing on the accrual of a claim for abuse of process under Missouri
law. Defendants contend that plaintiff’s alternative theory of a continuing tort fails because statutes
of limitation are favored under Missouri law and any exceptions must be strictly construed, Graham
v. McGrath, 243 S.W.3d 459, 464 (Mo. Ct. App. 2007), and plaintiff bears the burden to show that
he strictly comes within a claimed exception. Id. Defendants concede that plaintiff’s action for
abuse of process might have been subject to a collateral estoppel defense, but assert this does not
save the untimely cause of action because plaintiff provides no authority that application of the
doctrine results in the statute of limitations being tolled. Defendants conclude that because claims
for abuse of process are subject to a five-year limitations period, Count VII is time barred and must
be dismissed.
The Eighth Circuit has explained, “Bar by a statute of limitation is typically an affirmative
defense, which the defendant must plead and prove.” Jessie v. Potter, 516 F.3d 709, 713 (8th Cir.
2008). “A defendant does not render a complaint defective by pleading an affirmative defense[.]”
Id. Thus, “As a general rule, the possible existence of a statute of limitations defense is not
ordinarily a ground for Rule 12(b)(6) dismissal unless the complaint itself establishes the defense.”
Joyce v. Armstrong Teasdale, LLP, 635 F.3d 364, 367 (8th Cir. 2011) (quotation marks and quoted
case omitted). As a result, the inquiry for purposes of the instant motion is whether plaintiff’s
Amended Complaint establishes that his abuse of process claim is barred by the statute of
limitations.
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Because this is a state law claim, the Court applies Missouri law regarding the statute of
limitations and any rules that are an integral part of the statute of limitations, such as tolling and
equitable estoppel. See Walker v. Barrett, 650 F.3d 1198, 1203-04 (8th Cir. 2011). The parties
agree that the five-year statute of limitations of § 516.120(2) applies to a claim for abuse of process.
See Corley, 820 S.W.2d at 672. In Missouri, the statute of limitations on an abuse of process claim
“begins to run[] from the termination of the acts which constitute the abuse complained of, and not
from the completion of the action in which the process issued.” Id.
The complaint alleges that the actions constituting abuse of process occurred in 2003 and
2006, but also alleges that plaintiff was imprisoned based solely on the false evidence manufactured
and provided by Sharp and Garrett, and his conviction was not overturned until 2011. The
complaint further alleges that plaintiff was unable to bring his claims until his conviction was
overturned because each claim would have impugned his then-existing conviction.

These

allegations from the complaint could plausibly support plaintiff’s collateral estoppel argument raised
in opposition to the motion to dismiss, and therefore the complaint itself does not entirely foreclose
the possibility that plaintiff can successfully rebut defendants’ statute of limitations defense. In
addition, as plaintiff asserts, Missouri recognizes the continuing tort or continuing wrong doctrine,
see Davis v. Laclede Gas Co., 603 S.W.2d at 556, which could plausibly apply here.5
Defendants argue plaintiff has not cited any Missouri cases holding that even if he was
collaterally estopped from bringing suit, this would have any effect on the statute of limitations.
This argument fails to recognize that in the context of a motion to dismiss under Rule 12(b)(6),

5

There is no indication that Missouri courts have adopted the analytical framework of Heck
v. Humphrey, 512 U.S. at 486-87, for analyzing the accrual of state law claims. Cf. Parish v. City
of Elkhart, 614 F.3d 677, 681 (7th Cir. 2010) (stating that the Indiana Court of Appeals had adopted
the Heck framework with respect to the accrual of state law claims for false imprisonment).
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dismissal on the basis of the statute of limitations is proper only where the complaint itself
establishes the defense. See Joyce, 635 F.3d at 367. The complaint does not so establish in this
case. The Court also notes that defendants, as the moving parties, have not cited any Missouri cases
to establish that collateral estoppel would not have an effect on the statute of limitations.
Based on the foregoing, defendants Sharp and Garrett’s motions to dismiss plaintiff’s abuse
of process claim in Count VII as untimely should be denied.
D. Malicious Prosecution - Count V
Defendant Garrett moves to dismiss Count V of the Amended Complaint on the basis that
it fails to state a claim upon which relief can be granted against him. Garrett states that to establish
a claim of malicious prosecution under Missouri law, a plaintiff must show: (1) the commencement
of a prosecution against the plaintiff; (2) the instigation by the defendant; (3) the termination of the
proceeding in favor of the plaintiff; (4) the want of probable cause for the prosecution; (5) activation
of the defendant’s conduct by malice; and (6) damage to the plaintiff; citing Perry v. Dayton Hudson
Corp., 789 S.W.2d 837, 840 (Mo. Ct. App. 1990). Garrett states that all six elements must be proved
and a failure to prove any one requires the dismissal of the claim. Id. at 841. Malicious prosecution
actions are not favored and therefore courts require strict proof of each element. Id.
Garrett asserts that plaintiff fails to allege facts to support the second element of malicious
prosecution, instigation. Garrett states, “Instigation requires that there be some affirmative action
by way of encouragement, advice, pressure, or the like in the institution of the prosecution,” Crow
v. Crawford & Co., 259 S.W.3d 104, 115 (Mo. Ct. App. 2008), and that simply triggering an
investigation is insufficient to establish that a defendant instigated the prosecution, citing Zike v.
Advance Am., 2010 WL 1816747, at *7 (E.D. Mo. May 3, 2010).

20

Garrett states that the Amended Complaint asserts he instigated plaintiff’s prosecution, Am.
Compl. ¶ 81, but in support alleges only that Garrett “wrongfully convinced federal prosecutors that
Plaintiff was an ‘admitted drug dealer.’” Id. Garrett contends this is a “threadbare recital” of the
elements of a claim for malicious prosecution and fails to provide more than a mere possibility he
may be liable. Garrett also asserts that plaintiff’s own allegations cut against his claim for malicious
prosecution, because the Amended Complaint alleges Garrett’s participation in plaintiff’s arrest and
booking was limited to the tangential actions of “perform[ing] surveillance” and “perform[ing] an
interview” of plaintiff at the police station following his arrest. Id. ¶ 45. Garrett adds that plaintiff’s
allegation he “wrongfully convinced federal prosecutors” that plaintiff was an admitted drug dealer
is contradicted by plaintiff’s admission that federal prosecutors were provided information regarding
plaintiff’s 1995 Alford plea prior to trial from a certified copy of the sentence and judgment. Id. ¶
30.
Plaintiff responds that under Missouri law, to instigate also means “to stimulate or goad to
an action, especially a bad action.” Crow, 259 S.W.3d at 114 (quoted case omitted). Plaintiff states
that the Amended Complaint alleges Sharp and Garrett’s conspiracy to frame him was the sole cause
of the prosecution, and that Garrett was instrumental in manufacturing the case against him.
Plaintiff quotes the factual allegations of paragraphs 23-13, 27-28 and 44-48 of the complaint, and
contends those facts allege that Garrett was more than a “tangential” figure in the prosecution, and
show that Garrett, together with Sharp, instigated the prosecution against him.
Garrett replies that plaintiff’s only allegations of actual conduct by him are that he was
present at the scene of the arrest, performed surveillance of the premises, interviewed plaintiff at the
station following his arrest, informed prosecutors of a prior arrest of plaintiff, and testified at
plaintiff’s trial. Garrett argues that these allegations fall well short of qualifying as “encouragement,
21

advice [or] pressure” to initiate a prosecution. Garrett contends that, at best, plaintiff alleges that
he provided one piece of information to prosecutors, but does not explain how one alleged
conversation regarding a prior arrest could be construed as “encouraging” plaintiff’s prosecution.
“Where . . . an informant knowingly gives false or misleading information or directs or
counsels officials in such as way as to actively persuade and induce the decision to prosecute, the
informant may be liable for malicious prosecution.” J. D. Lee & Barry A. Lindahl, Modern Tort
Law Liability & Litigation § 40:4 (2d ed. 2006). This is the rule in Missouri as well: “Merely
providing honest information from which a prosecution ensues is not instigation, although liability
may arise from supplying false information to the prosecuting official.” Crow, 259 S.W.3d at 115.
The instigation element of malicious prosecution has been described as follows:
The defendant may be liable either for initiating or for continuing a criminal
prosecution without probable cause. But the defendant cannot be held responsible
unless the defendant takes some active part in instigating or encouraging the
prosecution. The defendant is not liable merely because of approval or silent
acquiescence in the acts of another, nor for appearing as a witness against the
accused, even through the testimony be perjured . . . . On the other hand, if the
defendant advises or assists another person to begin the proceeding, ratifies it when
it is begun in defendant’s behalf, or takes any active part in directing or aiding the
conduct of the case, the defendant will be responsible.
Prosser and Keeton on Torts 872.
The Amended Complaint alleges that as part of a corrupt scheme, Sharp and Garrett
orchestrated plaintiff’s arrest without probable cause, and that Garrett (1) was present and performed
surveillance at the scene of plaintiff’s arrest, interviewed plaintiff after his arrest, and claimed to
prosecutors that plaintiff admitted in 1995 that he was a drug dealer, Am. Compl. ¶¶ 19, 27, 44-45;
(2) falsely informed prosecutors that plaintiff had “inexplicably admitted during questioning that he
was a ‘drug dealer’ during the 1995 arrest,” and prosecutors relied on this evidence in making the
determination that they believed plaintiff was a drug dealer and in possession of narcotics on
22

December 9, 2003, id. ¶ 28; (3) previously attempted to extort money from plaintiff and frame him
for a drug crime in 1995, id. ¶ 29; (4) after plaintiff’s arrest, told plaintiff he knew that plaintiff lived
in Ferguson, Missouri for approximately two years and did not live at 5984 Cates where he was
arrested; id. ¶ 44; (5) interviewed plaintiff at the police station after his arrest and encouraged
plaintiff to sign a consent form to search the premises in an attempt to validate the search and falsely
establish that plaintiff lived at or had control of the premises at 5984 Cates and thus had authority
to consent to the search, id. ¶ 45; (6) had plaintiff sign a “money disclaimer” during this interview
attesting that plaintiff had no knowledge of any money in the house, to ensure that Garrett and other
officers could steal and keep any money found in the house; id. ¶ 46; and (7) conferred with Sharp
for at least an hour prior to plaintiff’s trial; on information and belief to go over the details of Sharp
and Garrett’s conspiracy, id. ¶ 47.
The Court finds these allegations are sufficient to state a plausible claim of malicious
prosecution against Garrett. The element of instigation is present because plaintiff alleges
affirmative action by Garrett to encourage the prosecution, specifically that Garrett acted together
with and assisted Sharp in beginning plaintiff’s prosecution, and took an active part in encouraging
prosecution of the case by telling federal prosecutors that plaintiff had “inexplicably admitted during
questioning” following the 1995 arrest that he was a “drug dealer.” Am. Compl. ¶ 28. Plaintiff also
alleges that federal prosecutors relied on Garrett’s representation in deciding to pursue plaintiff’s
prosecution for possession of narcotics on December 9, 2003. Id.
Garrett is not entitled to dismissal based on statements in the complaint that plaintiff entered
an Alford plea to the 1995 charge and that prosecutors had a certified copy of the conviction prior
to trial. Garrett does not explain why the Alford plea requires dismissal of the malicious prosecution
claim. Presumably, the implicit argument is that entry of an Alford plea constitutes admission of
23

the underlying facts in the charging document. Garrett cites no authority in support of such an
argument, however, and therefore the Court rejects it. See, e.g., Vandenboom v. Barnhart, 421 F.3d
745, 750 (8th Cir. 2005) (refusing to consider an argument on which the moving party “provide[d]
no analysis of the relevant law or facts”).6
Defendant Garrett’s motion to dismiss Count V should therefore be denied.
E. False Imprisonment - Count VI
Finally, defendant Garrett moves to dismiss plaintiff’s false imprisonment claim in Count
VI on the basis that it fails to state a claim upon which relief can be granted against him. Garrett
states that an action for false imprisonment cannot be based on a mere failure to speak or act, but
rather must be based upon some affirmative act instigating the arrest, citing Davis v. Weil Clothing
Co., 367 S.W.2d 19, 23 (Mo. Ct. App. 1963). Garrett argues that the Amended Complaint is devoid
of any allegations regarding how he “instigated” plaintiff’s arrest, and states that the only factual
allegation regarding his conduct prior to the arrest is that he “performed surveillance.” Garrett
contends that the allegations against him in Count VI fail to provide any substantive information and
thus provide only the sheer possibility of liability, which is inadequate under Iqbal.
Plaintiff’s opposition memorandum offers a combined response to Garrett’s dismissal
arguments concerning the malicious prosecution and false imprisonment counts. Plaintiff states that
under Missouri law, a person can be liable for encouraging, causing promoting or instigating an
arrest, citing Highfill v. Hale, 186 S.W.3d 277, 280 (Mo. 2006) (en banc), and whether a person

6

The Court notes that while an Alford plea results in a conviction and is indistinguishable
from other guilty pleas when determining whether a conviction qualifies as a predicate offense to
enhance a sentence, United States v. Cover, 703 F.3d 477, 482 (8th Cir. 2013), the Eighth Circuit
has stated that an Alford plea is different from other pleas because the defendant pleads guilty
without admitting the facts underlying the conviction. See United States v. Williams, 664 F.3d 719,
722 (8th Cir. 2011).
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instigated an arrest is a fact-specific inquiry for which there is no fixed test, citing Smith v. Allied
Supermarkets, Inc., 524 S.W.2d 848, 852 (Mo. 1975) (en banc). Plaintiff argues that the Amended
Complaint’s factual allegations, as recited above, are sufficient to state a claim for false
imprisonment against Garrett because his and Sharp’s conspiracy to frame plaintiff was the sole
cause of his arrest.
Garrett replies that the only allegations in the Amended Complaint related to his conduct
prior to plaintiff’s arrest are that he was present at the scene and performed surveillance, and
therefore it is clear that his role was merely as an ancillary figure who was merely present when
plaintiff was arrested. Garrett does not cite any authority in the form of illustrative cases in support
of his position.
Under Missouri law, “False imprisonment, also called false arrest, is ‘the confinement,
without legal justification, by the wrongdoer of the person wronged.’” Highfill, 186 S.W.3d at 280
(quoting Warrem v. Parrish, 436 S.W.2d 670, 672 (Mo. 1969)). “A person can be liable for false
imprisonment if he encourages, causes, promotes, or instigates the arrest.” Id. (citing Day v. Wells
Fargo Guard Service Co., 711 S.W.2d 503, 505 (Mo. 1986) (en banc)). The term “instigate” has
been described in Missouri false arrest and imprisonment cases in various ways:
“Instigate” means to stimulate or goad to an action. “Abet,” a synonym for
“instigate,” means “to aid, promote, or encourage the commission of an offense.”
“Countenance” means to “encourage, favor, approve,” its synonyms being “sanction,
endorse, support.” But, “to ‘countenance’ an act means something more than to
witness it.”
Bergel v. Kassebaum, 577 S.W.2d 863, 867-68 (Mo. Ct. App. 1978) (internal punctuation, citations
and quoted cases omitted). Plaintiff is correct that whether a person instigated an arrest is a
fact-specific inquiry for which there is no single test. Highfill, 186 S.W.3d at 280. Further, a

25

plaintiff is entitled to prove that a defendant encouraged, promoted or instigated the arrest by either
direct or circumstantial evidence. Day, 711 S.W.2d at 505.
The instigation element of false imprisonment has been described as follows:
One who participates in an unlawful arrest, or procures or instigates the
making of one without proper authority, will be liable for the consequences; but the
defendant must have taken some active part in bringing about the unlawful arrest
itself, by some “affirmative direction, persuasion, request or voluntary participation.”
There is no liability for merely giving information to legal authorities, who are left
entirely free to use their own judgment, or for identifying the plaintiff as the person
wanted, or requesting a proper arrest when an officer makes an improper one instead,
or swearing to a complaint before a magistrate who turns out not to have jurisdiction.
Prosser and Keeton on Torts 52.
The Amended Complaint alleges that Garrett did more than merely give information to legal
authorities or have a tangential role in plaintiff’s arrest. Plaintiff alleges that Sharp and Garrett acted
together to frame him – as well as other innocent persons – for a crime he did not commit, in order
to steal contraband, cash and other property, extort money, and deflect from Sharp and Garrett’s
corruption. Plaintiff alleges that his arrest was a direct result of ongoing police corruption planned,
directed and carried out by Sharp, Garrett and other unknown officers, and that Garrett was a
“ringleader and instrumental in corrupting other officers.” Am. Compl. ¶ 22. Plaintiff alleges that
Garrett was present at the time of his arrest and provided surveillance of the premises where he was
arrested, told plaintiff he would take him downtown and release him without charging him “as long
as he agreed not to go back to that house anymore,” and indicated to plaintiff that Garrett knew
plaintiff did not live at the Cates address; interviewed plaintiff at the station and encouraged him to
sign a consent form to search the premises in an effort to validate the search and falsely establish
that plaintiff lived at or was in control of the premises and had authority to consent to the search.

26

The Court finds the Amended Complaint sufficiently alleges facts tending to show that
Garrett encouraged, aided, promoted or instigated plaintiff’s arrest, and was more than a mere
tangential figure. This aspect of Garrett’s motion to dismiss should therefore be denied.
Conclusion
For the foregoing reasons, the Board’s motion to dismiss Counts V, VI and VII based on
sovereign immunity should be granted. The motions to dismiss filed by defendant Sharp and
defendant Garrett should be denied in all respects. Accordingly,
IT IS HEREBY ORDERED that defendants Slay, Battle-Turner, Gray, Lee and Irwin’s
Motion to Dismiss Counts V, VI and VII of Plaintiff’s Amended Complaint is GRANTED, and
Counts V, VI and VII will be DISMISSED as to these defendants. [Doc. 52]
IT IS FURTHER ORDERED that defendant Sharp’s Motion to Dismiss is DENIED.
[Doc. 58]
IT IS FURTHER ORDERED that defendant Garrett’s Motion to Dismiss is DENIED.
[Doc. 56]
IT IS FURTHER ORDERED that defendants Sharp and Garrett shall file their Answers
to the Amended Complaint within the time permitted by the Federal Rules of Civil Procedure. See
Rule 12(a)(4)(A), Fed. R. Civ. P.
An appropriate order of partial dismissal will accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 7th day of November, 2013.
27